Boehner quietly defends DOMA

Speaker John Boehner has said all along that defending traditional marriage is simply about defending existing law. But as he spearheads a legal effort to uphold the Defense of Marriage Act, his lack of public engagement on the issue leaves doubts about how outspoken he really wants to be on behalf of the religious right.

It’s a familiar dance for Boehner and social conservatives — he says all the right things, but he doesn’t spend much political capital for the cause.

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Those dynamics were on display this week when gay rights advocates regaled as Boehner’s lawyer was forced to switch law firms because of his work on the House’s behalf. While liberals have complained about use of House resources to defend DOMA, Boehner has used his insider control to cater to conservative opposition to same-sex marriage. Said Republican Study Committee Executive Director Paul Teller: “RSC members that I’ve heard from have been very pleased with the speaker’s robust defense of DOMA.”

Still, skeptics contend that Boehner has always been less than passionate about such culture war issues, and they have received short shrift as the House Republican majority deliberately has made economic recovery and job growth its top priority. That was the case when he backed down from the House-passed amendment to this year’s spending bill that would have stripped more than $300 million from Planned Parenthood. With second-guessing of his cautious approach, “Some conservatives felt that he could have gone further to publicly fight” to defund Planned Parenthood, a GOP insider said.

Even conservative allies concede that he has never been much of a culture warrior. “For some, a distrust of those in power keeps them from embracing him. For some, it’s his style, his look and feel,” National Review’s Kathryn Lopez wrote about Boehner last year.

Whether or not that charge is valid, it seems all the more ironic with his backing of the Defense of Marriage Act. That law was signed in 1996 by President Bill Clinton, whom other Democrats derided as the Pander Bear for his ambivalent convictions — as shown by the avid gay-rights advocate’s embrace of this restrictive law amid his reelection campaign.

The marriage controversy flared during a recess week in which Boehner has made news in edgy interviews at home with national reporters on other hot-button topics — notably, the debt ceiling and oil-company profits.

By contrast, Boehner has stayed mum in the recent conflict over the lawyering on his behalf in the gay-marriage debate. His role has been shrouded in such congressional obscurities as the House’s Bipartisan Legal Advisory Group — a leadership panel that voted 3-to-2 in a party-line vote for the House to defend the law — and the selection of former Solicitor General Paul Clement, a veteran Supreme Court litigator, to carry the legal case.

With conservatives pleased that the speaker is defending the law, the recent second-guessing mostly has come from the left. Boehner has shown a “muted response” because of uncertainty over the rapidly evolving politics, Lanae Erickson, who is deputy director for the culture initiative of the centrist Democrats’ Third Way, wrote with Third Way President Jon Cowan in an op-ed piece for The Baltimore Sun.

During two decades in the House, Boehner has hardly been an activist on gay-rights issues. In contrast to the abortion debate, where Boehner has won awards from national pro-life groups and he has been tearful in his advocacy, his interest in the marriage debate has been little-noted — even by his newfound allies. Even during his five years as chairman of the House Education and the Workforce Committee, which has a hook to some social issues, his aversion to rhetorical bombast meant that he rarely called attention to those topics even though he mostly agreed with the political right. He “hasn’t gotten much attention for” his work, conceded Charmaine Yoest, president and CEO of Americans United for Life.

In the two months since Attorney General Eric Holder announced that he would not defend the statutory restrictions on gay marriage, legal tussles have flared over the law firm that represents the House, the payment of legal fees and the unusual posture of the legislative branch — not the Justice Department — taking command in a controversial case that very likely will require several years before the Supreme Court rules on the law’s constitutionality.

Boehner’s low profile in the DOMA litigation has been no accident — this week, earlier, and in further conflicts that surely lie ahead. But Boehner spokesmen and allies make clear that serving as the dutiful client should not be viewed as his lack of intensity or commitment to the marriage law or the contentious courtroom advocacy. With his background as a small-business man, Boehner often has bemoaned the litigiousness of the court system.

“The speaker feels that this case is an appropriate action on behalf of Congress,” Boehner spokesman Michael Steel said. “He felt that it was our responsibility, given the Obama administration’s decision not to defend the law.”

For that matter, a House Judiciary subcommittee hearing on the marriage debate on the final day before the current recess received little public attention or member participation. At the hearing, both Committee Chairman Lamar Smith (R-Texas) and Constitution Subcommittee Chairman Trent Franks (R-Ariz.) issued statements that strongly criticized the administration’s refusal to defend DOMA and referred briefly to the House’s response.

However cautious Republicans may seem, conservative activists have welcomed Boehner’s steadfast handling of the case. Not least, they applaud his selection of Clement, who made several dozen Supreme Court appearances on behalf of President George W. Bush as the government’s chief courtroom advocate, and the speaker’s loyalty to Clement after his Monday announcement to switch law firms when Atlanta-based King and Spalding — his previous firm — decided to drop the case.

“We were extremely pleased with Speaker Boehner’s decision to intervene. That improved our prospects of prevailing,” said Maggie Gallagher, who chairs the National Organization for Marriage, which has become an active voice in opposing same-sex marriage laws since its creation in 2007. “He has shown a commitment to the law. … This is not about legal or political theatrics. It’s about the defense of marriage.”

Gallagher warned against the familiar media narrative of concluding that Boehner’s role is merely for show or that he is not committed to the case. “Everyone knows that there will be a PR hit in the mainstream media for standing up on these issues,” she said. “The story line is that the GOP will abandon social conservatives. That hasn’t happened with Boehner. … He has been magnificent.”

Boehner’s efforts have sparked a battering from liberals, especially Minority Leader Nancy Pelosi (D-Calif.), who has raised repeated questions about the financial cost of the House’s intervention and the lack of transparency in the House’s intervention. In challenging the House’s contract with King and Spalding on behalf of Clement, Pelosi last week wrote Boehner with several questions about the arrangement. She said that she was pursuing “normal oversight” of the $500,000 contract signed by GOP leaders without consulting with Democrats.

At issue is the ultimate constitutional outcome of the 1996 law, which decrees that a state cannot be required to recognize a same-sex marriage in another state. The law was passed overwhelmingly by the Republican-controlled Congress, including a majority of both House and Senate Democrats.

Although back-bencher Pelosi opposed the measure, it was supported by Democratic leaders at the time and by the current corps of party leaders — including Steny Hoyer (D-Md.) and Jim Clyburn (D-S.C.) in the House and Senate Majority Leader Harry Reid (D-Nevada). No serious efforts were made to repeal the law when Democrats had full control of Congress and the White House during the past two years. “They are dealing with the consequences of their cowardice,” a Pelosi critic noted.

Instead, the law’s critics have turned their attention to the courts. In that sense, some welcome Boehner’s defense of the law in setting up an ultimate constitutional showdown in what is expected to be a narrowly divided Supreme Court. Even Holder, in notifying Boehner that the administration would not defend the law, wrote that Justice lawyers would give Congress “a full and fair opportunity to participate in the litigation in those cases.”

With the boost from Boehner, conservatives contend that they are on a roll on the marriage issue. Gallagher said that recent legislative and election success in several typically liberal states should dispel the conventional wisdom that gay marriage is a bad issue for Republicans.

Depending on the outcome of next year’s presidential election, the shifting political tides could restore the Justice Department to its traditional role in defending the DOMA law. If Democrats regain House control, on the other hand, it’s a safe bet that Clement’s legal representation would quickly end.